Siganporia v Auckland Council

[2022] NZHC 2346

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1672

[2022] NZHC 2346

UNDER

Part 19 of the High Court Rules and sections 316 and 317 of the Property Law Act 2007

IN THE MATTER OF

the modification of Land Covenant in Transfer A271190

BETWEEN

FARHAD FIRDOSH SIGANPORIA

Applicant

AND

AUCKLAND COUNCIL

First Respondent

AND

GARY BOURNE AND KATHRYN MARY ANNE BOURNE AND OTHERS

Second to Twentieth Respondents (as detailed in Schedule A)

Hearing:	15 March 2022
Appearances:	M Singh and P S Kim for Applicant
Judgment:	31 October 2022

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 31 October 2022 at 5 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Glaister Ennor, Auckland

SIGANPORIA v AUCKLAND COUNCIL [2022] NZHC 2346 [31 October 2022]

Introduction

[1]    This judgment determines an originating application for an order modifying a restrictive covenant pursuant to s 317(1) Property Law Act 2007 (“PLA”), together with ancillary relief (“covenant”). The application is supported by affidavits of the applicant, Mr Siganporia, and a town planner, Mr P Brown.

[2]    The applicant is the registered proprietor of 76 Reeves Road, Pakuranga Heights, Auckland, which he purchased in November  2020.  The  site  comprises 675 m2 and is Lot 26 on Deposited Plan 57895 (“Lot 26” or “site”, and “DP 57895”). At present, there is one dwelling on the site. The applicant wishes to subdivide the land into three smaller parcels and to construct a dwelling on each of the subdivided lots. Although the covenant is noted on the title, the applicant says he was unaware of it before his purchase.

[3]    The  covenant  is  contained  in  memorandum  of  transfer  A27190T  dated  4 December 1967 (“transfer”) and includes the following words in cl 4 (“words in issue”):

... to the intent that the said land shall not at any time be used except as a site for a single residential unit.

[4]    The first issue that I am required to resolve is whether the covenant precludes what the appellant proposes by way of three dwellings. Secondly, whether it does or does not, the applicant seeks an order that the covenant be modified by deleting the words in issue.

Procedural matters

[5]The applicant has served all those requiring to be served.

[6]The first respondent abides the decision of the Court.

[7]    The second to twentieth respondents are the registered proprietors of the benefitted land. Although several filed memoranda after service of the documents suggesting they would oppose the application, none has done so. The twelfth

respondents had originally indicated to the Court that they intended to oppose the application but ultimately they have consented on the basis the application will not affect them. Their property is situated on Reeves Road but at some distance from the applicant’s property.

Proper construction of the covenant

[8]    The first task is to determine whether the covenant prohibits the construction of more than one dwelling on the site.

[9]    As to the proper construction of a covenant, counsel referred me to relevant passages in Gordon J’s judgment in Taylor v Small.1 Gordon J delivered her judgment close in time to the Supreme Court’s decision in Green Growth No. 2 Ltd v Queen Elizabeth the Second National Trust.2 On appeal in Taylor v Small, the Court of Appeal held that Gordon J’s approach to interpretation, particularly as concerns the relevance of extrinsic evidence, was at odds with the approach articulated by the Supreme Court in Green Growth.3 In this case, however, I am not required to have regard to extrinsic evidence. Given that, I shall proceed on the basis adopted by the Court of Appeal in Taylor v Small, which in turn reflected the Supreme Court’s decision in Firm PI 1 Ltd v Zurich Australian Insurance Ltd:4

[60] ... the proper approach is an objective one, the aim being to ascertain “the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract”. This objective meaning is taken to be that which the parties intended ...

[63]  While context is a necessary element of the interpretive process and  the focus is on interpreting the document rather than particular words, the text remains centrally important. If the language at issue, construed in the context of the contract as a whole, has an ordinary and natural meaning, that will be a powerful, albeit not conclusive, indicator of what the parties meant ...

1      Taylor v Small [2018] NZHC 2785, (2018) 19 NZCPR 917.

2      Green Growth No. 2 Ltd v Queen Elizabeth the Second National Trust [2018] NZSC 115.

3      Taylor v Small [2019] NZCA 152 at [70].

4      Firm PI 1 Ltd v Zurich Australian Insurance Ltd [2014] NZSC 147, [2015] 1 NZLR 432 (citations omitted).

Background

[10]   The site is one lot in a substantial subdivision undertaken in 1967. From the recitals to the transfer it appears that the transferor, John Sissons & Son Ltd, had owned all of the land in what became DP 57895 and that it had carried out the subdivision. On the face of DP 57895 the total area subdivided comprised more than 1.6 ha, subdivided into 22 lots. It is clear from the recitals that the subdivision was for residential purposes, as the lots were referred to as “residential lots”.

[11]   Two cases concerning the same issue of construction that arises in this case, and in respect of restrictive covenants imposed on subdivisions of land in Pakuranga, are Barnett v Chow and Potter v Peterson.5 These cases shed some light on the subdivision of previously rural land which was taking place in Pakuranga at about this time.

[12]   In Barnett v Chow, the Court was required to determine whether the restrictive covenant prohibited more than one dwelling on the site. The Court was satisfied that it did. The covenant in that case was similar but not identical to that before me, and was contained in a memorandum of transfer executed in 1978.

[13]   The other case, Potter v Peterson, is a decision of Judge D J Harvey in the District Court at Otahuhu. This case was decided in 1993 but concerned a subdivision in 1974. In that case, the Judge had the benefit of an affidavit from the original transferor, Mr Maurice Paykel, who had subdivided his 50 acre farm into residential lots. The judgment states that extensive subdivision was taking place in Pakuranga in 1974, and that, of all of those who subdivided, Mr Paykel was the last to do so. As in this case, one issue before the Judge was whether the covenant prevented more than one residential dwelling on the site, and again the Judge held that it did.

[14]Returning to this case, the recitals to the transfer record that:

5      Barnett v Chow HC Auckland CP436/90, 20 December 1990; and Potter v Peterson DC Otahuhu M755/92, 11 June 1993.

(a)The transferor had subdivided the land into “residential lots” “for the purposes of the sale of the said land in residential lots as a building estate”.

(b)The transferor intended that all residential lots contained in the plan should be subject to a “general scheme applicable to and for the benefit of” all such lots, and that the owner or occupier of each should be bound by and able to enforce the provisions of the transfer against the owner or occupier of any other lot.

(c)The purchaser, Mr Fort, had agreed to purchase and to enter into the covenant contained in the transfer so as to bind him and for the benefit of identified lots shown on the plan. Those lots were all except lots 34 and 42, which were marked as “corporation lots” and presumably were retained by the transferor.

[15]As to the covenant itself, the relevant part of the transfer is as follows:

THE TRANSFEREE ... DOTH HEREBY COVENANT AND AGREE with

the Transferor for the benefit of the remaining land not heretofore transferred by the Transferor and also separately with each and every the registered proprietors of and for the benefit of the remaining land heretofore transferred to such proprietors by the Transferor that the Transferee will henceforth well and faithfully observe perform and fulfil and keep all and singular the stipulations and restrictions hereinafter set forth that is to say:-

1. NOT to use the land hereby transferred or permit the same to be used for any trading or commercial purpose including commercial poultry farming.

2. NOT to erect or permit to be erected or place or permit to be placed on the land hereby transferred any dwellinghouse to the value at the time of erection of less than the sum of $7,000 (excluding from calculation thereof the value of any outbuildings and paths) or any glasshouse exceeding 200 sq. feet in area.

3. NOT to erect or place or permit to be erected or placed upon the land hereby transferred any caravan hut or shed to be used as a dwelling or temporary dwelling on the said land.

4. NOT to erect or permit to be erected upon the land hereby transferred any flat or flats nor convert or permit to be converted into a flat or flats any dwelling at any time erected on the said land to the intent that the said land shall not at any time be used except as a site for a single residential unit.

[16]   As I have said, the issue is whether the covenant precludes the construction of more than one dwelling on the site, with the particular words in issue being those appearing at the end of cl 4 from “to the intent” onwards.

Submissions

[17]   The applicant submits that the covenant does not prohibit more than one dwelling on the site. He submits that the covenant contains restrictions as to “quality”, rather than “quantity”. Specifically, the applicant submits that the reference to “single residential unit” in cl 4 is not a reference to “one” dwellinghouse, but that the covenant as a whole permits of two or more dwellinghouses, provided they meet the requirements of cl 2, that is that their value at the time of construction is not less than

$7,000.

[18]   In support of this submission, counsel for the applicant referred me to several authorities in which the Court has had to consider the same issue. Counsel for the applicant did not contend that any were wholly on point. The cases have been of assistance to me but ultimately it is a matter of construing this particular covenant.

[19]The applicant’s submissions are as follows.

[20]   First, cls 2, 3, and 4 refer to a “dwelling” or “dwellinghouse” whereas the words in issue refer to a “single residential unit”. The applicant submits that, given this, a single residential unit is something different to a dwellinghouse.

[21]   Secondly, the appellant submits that the reference in cl 4 to a “single residential unit” is to a type of dwelling, being one in which a group of people live as a single household with their own bathroom and kitchen as opposed to flats, being “a house shared with people who are not members of one’s family”.6 Counsel referred me to Beavon Investments Ltd v Marlborough District Council, in which Miller J held that a flat was such a house. However, that case was decided in a very different context and I do not consider it of any real assistance in the present case.

6      Beavon Investments Ltd v Marlborough District Council [2012] NZHC 113 at [19].

[22]   Thirdly, if the covenant was intended to restrict the number of dwellings on the site, a separate clause would have been added to say so, rather than expressing that restriction, if it is a restriction, within a clause concerned to prohibit the construction of a flat or flats or the conversion of a dwelling into the same.

[23]   Fourthly, cls 2 and 4 envisage more than one dwelling on the site. Clause 2 refers to the minimum value of any dwellinghouse as opposed to the dwellinghouse, as in Douglas v Morgan.7 Also, unlike Douglas v Morgan, there is no limit to the number of ancillary buildings permitted. As to cl 4, this refers to any dwelling (rather than the dwelling) at any time erected on the said land.

[24]   Fifthly, if the covenant was intended to restrict the number of dwellings on the site, cl 4 would have said “a site for one dwelling [or dwellinghouse]”, as opposed to “a site for a single residential unit”

[25]   Sixthly, there is no prohibition on subdivision. Counsel submits that it would be illogical to permit subdivision but to require the subdivided land to remain bare.

Counsel referred me to Zhang v Liu in this respect.8

[26]   Lastly, the applicant submits that, as a whole, the covenant is intended to ensure a minimum standard of quality in the neighbourhood. The covenant excludes the use of the site for trading and commercial purposes; any dwelling must be of a particular minimum value at the time of construction; and temporary dwellings and flats are prohibited.

Discussion

[27]   All of these submissions are open on the face of the transfer. Despite that, for the following reasons I consider that the covenant does preclude more than one dwelling on the site.

[28]   Two preliminary points are these. First, each clause refers and applies to “the land hereby transferred”. That land is Lot 26. Secondly, it is unclear what is meant

7      Douglas v Morgan [2012] NZHC 3375.

8      Zhang v Liu (2010) 11 NZCPR 403.

by a “flat or flats”, as referred to in cl 4. Counsel referred to the fact that deeds of cross-leased properties often refer to the cross-leased lots as “flats”, so that it might be argued that cl 4 is a restriction against cross-leases. As counsel acknowledged, that would be an argument against more than one dwelling on the site. As cross leases are understood today at least, there are often two or more dwellings on one site. Accordingly, if the reference to “flats” is a reference to cross-leased lots, that would suggest only one dwelling may be constructed on the land.

[29]   However, that may not be what is meant by the reference to “flat or flats”. In Potter v Peterson, the Judge made reference to  Mr Paykel’s  evidence,  in  which  Mr Paykel said he did not wish a “sausage style” block of flats to be built on his subdivided lots.9 The Judge referred to sausage style flats as comprising a long building divided into a number of flats and generally consisting of a ground floor and storey above.

[30]   Given these different possibilities, and there may be others, the only point that can safely be made is that, whatever is meant by “flat or flats”, the covenant in this case prohibits them.

[31]   Coming back to the covenant, it restricts both the use to which the site may be put, and what may be constructed or placed thereon.

[32]   As to the former, cl 1 prohibits the use of the site for commercial or trading purposes. Clause 4 is to the effect that the intent of the covenant is that the land shall not, at any time, be used except as a site for a single residential unit.

[33]   As to what may or may not be built on the land, the covenant prohibits any dwellinghouse to a value of less than $7,000 at the time of construction. I should add that the purchase price paid by the transferee for Lot 26 was $3,300. So I expect that a dwellinghouse to that value at the time of the transfer of the land would have been a reasonably substantial sum. The covenant also prohibits the construction of a glasshouse exceeding 200 square feet in area; any flat or flats; and no dwelling may be converted into a flat or flats.

9      Potter v Peterson, above n 5.

[34]This brings me to the words in issue.

[35]   In my view, the reference to “residential unit” in cl 4 must be to a dwellinghouse of the requisite minimum value. But for that, cl 2 might be easily defeated.

[36]   If I am correct in this, the effect of the words in issue is that the land transferred shall not at any time be used except as a site for a single residential unit, that is for a single dwellinghouse to the value of $7,000 or more at the time of construction. In that context, I consider the reference to “single” must mean “one” and that the construction of two or more dwellings on the land is prohibited.

[37]   My reasons for rejecting counsel’s submissions as to the proper construction of the covenant are these.

[38]   As to the first, referred to in [20] above, for the reasons given I do not accept that a residential unit is something different to the dwellinghouse anticipated by cl 2.

[39]   As to the second submission, referred to in [21] above, the words in issue in cl 4 are concerned with the use of the land. They are not concerned with the makeup of the inhabitants of the residential unit or dwelling.

[40]   As to the third submission, referred to in [22] above, I accept that if cl 4 was intended to confine the number of dwellings on the site to one, a separate clause could have been added to say so. This argument is not persuasive, however, at least not in this case. For instance, if two or more dwellings were permitted, cl 4 might equally have read “single residential unit or units”.

[41]   As to the fourth submission, referred to in [23] above, I accept cls 2 and 4 refer to “any dwellinghouse” or “any dwelling”. It is possible, however, that those words are intended to recognise that an existing dwellinghouse might be demolished and rebuilt, so that the dwelling on the site might change from time to time.

[42]   As to the submission referred to in [25] above, I am not persuaded that the absence of a prohibition on subdivision is material. Subdivision in itself may not affect

an owner of benefitted land. Moreover, there are reasons to permit subdivision other than to allow for the construction of more dwellings on a site, for example a boundary adjustment between neighbouring sites. I note also that there does not appear to have been a prohibition on subdivision in the similar covenants under consideration in Barnett v Chow, Douglas v Morgan, and Potter v Peterson.10 Despite that, in those cases the Court held that the covenant precluded more than one dwelling on the site.

[43]   Accordingly, to conclude on the issue of construction, on the basis of the submissions and information before me, I do not accept the applicant’s submission that the covenant as it stands permits of more than one dwellinghouse on the site. In my view, the effect of the covenant is that only one dwelling on the site is permitted.

[44]   I add that, had I accepted the applicant’s submission that the covenant does not prohibit two or more dwellings on site, I would not have modified the covenant to delete the words in issue. Had I accepted that submission, the applicant sought modification under ss 317(1)(b), 317(1)(e), and 317(1)(f) (all of which are set out below), so as to avoid ambiguity and the possibility of future dispute.

[45]   I do not consider that the power to modify a covenant conferred by s 317(1) may be exercised for such a purpose. Section 317(1) contemplates the power to modify being used to alter the burden of a covenant. If the covenant does not in fact impose that burden, I do not consider there is any basis on which to modify it.

Modification

Section 317 Property Law Act 2007

[46]   I turn now to the applicant’s submissions as to why the covenant ought to be modified. Modification is sought on the grounds in ss 317(1)(a)(ii), 317(1)(b), 317(1)(e) and 317(1)(f).

10     Douglas v Morgan, above n 7; Barnett v Chow, above n 5; and Potter v Peterson, above n 5.

[47]Section 317 PLA provides:

317     Court may modify or extinguish easement or covenant

(1)On an application ... for an order under this section, a court may, by order, modify or extinguish (wholly or in part) the easement or covenant to which the application relates (the easement or covenant) if satisfied that—

(a)the easement or covenant ought to be modified or extinguished (wholly or in part) because of a change since its creation in all or any of the following:

(i)the nature or extent of the use being made of the benefited land, the burdened land, or both:

(ii)the character of the neighbourhood:

(iii)any other circumstance the court considers relevant; or

(b)the continuation in force of the easement or covenant in its existing form would impede the reasonable use of the burdened land in a different way, or to a different extent, from that which could reasonably have been foreseen by the original parties to the easement or covenant at the time of its creation; or

(c)every person entitled who is of full age and capacity—

(i)has agreed that the easement or covenant should be modified or extinguished (wholly or in part); or

(ii)may reasonably be considered, by his or her or its acts or omissions, to have abandoned, or waived the right to, the easement or covenant, wholly or in part; or

(d)the proposed modification or extinguishment will not substantially injure any person entitled; or

(e)in the case of a covenant, the covenant is contrary to public policy or to any enactment or rule of law; or

(f)in the case of a covenant, for any other reason it is just and equitable to modify or extinguish the covenant, wholly or partly.

...

[48]   Section 317 requires the Court first to determine whether one or more of the specified grounds in s 317(1) is made out. If so, the second task is to determine whether the discretion to extinguish or modify the covenant should be exercised. In

particular, if the Court finds that one or more of the grounds in s 317(1)(a) is satisfied, it will have found that “the easement or covenant ought to be modified or extinguished (wholly or in part)”.11

Section 317(1)(a)(ii)

[49]   Section 317(1)(a)(ii) requires that I be satisfied that the covenant ought to be modified because of a change since its creation in the character of the neighbourhood. The change must be sufficient to establish that the covenant ought to be modified. The focus is not on the fact of change but on the impact of the change on the benefit or burden flowing from the covenant.12

[50]   The submission advanced under s 317(1)(a)(ii) is that the neighbourhood has undergone development and has been subject to significant planning changes since the covenant was created. It is submitted that the impact of these changes means that the burden flowing from the covenant is now more pronounced in the case of the applicant’s site rather than, say, on a neighbouring property, perhaps across the road, unburdened by a similar covenant.

[51]   The first matter to consider is whether there is evidence of a change in the character of the neighbourhood.

[52]   Mr Brown states that, when the covenant was created, Reeves Road and the surrounding area was being developed in a low-density manner. In support of this statement, Mr Brown annexes to his affidavit two aerial photographs of the land in and about Reeves Road, one taken in 1966 and the other in 1972. Mr Brown states in his affidavit that he considers these images evidence “a significantly different suburban context” to that permitted and encouraged today under the relevant provisions of the Auckland Unitary Plan (“AUP”).

11     Synlait Milk Ltd v New Zealand Industrial Park Ltd [2020] NZSC 157, [2020] 1 NZLR 657 at [67].

12 At [138].

[53]   The 1966 photograph shows that the area was then largely undeveloped. This is not surprising, since the subdivision of Reeves Road had not been implemented by then.

[54]   The 1972 photograph shows that numerous residential properties had been constructed over the preceding six years. This is consistent with the extent of the subdivision that was taking place in Pakuranga at the time.

[55]   However, there is no more recent evidence of the physical state or development of the neighbourhood than this.

[56]   I turn now to the evidence of changes to the zoning of the neighbourhood since the covenant was put in place. As the applicant accepts, although a change in zoning may be taken into account in deciding whether there has been a change in the character of the neighbourhood, it is not decisive and on its own is unlikely to amount to such a change.13

[57]   The first of three relevant planning documents is the Manukau County District Scheme prepared under the Town and Country Planning Act 1953. Presumably, it was under this scheme that the various subdivisions in Pakuranga took place. The scheme identified rural zones and one urban zone in the district. It provided that no residential building in the urban zone should be erected on a site less than 26.7 perches in area. Consistently with this, Lot 26 comprises 26.7 perches, and all of the other benefitted lots of relevance are that size or greater.

[58]   The second planning document is the Manukau District Scheme, which had effect from 1980. Under this scheme, the site fell within the “Residential 1” zone which enabled subdivision creating lots of a minimum net size of 600 m2 for a front site and 800 m2 for a rear site. This zone also permitted subdivision of a single lot into two, each to have a net area of not less than 375 m2, with one dwelling able to be constructed on each.

13     Synlait Milk Ltd v New Zealand Industrial Park Ltd, above n 11, at [151].

[59]   Under the AUP, the site is zoned Residential – Mixed Housing Suburban Zone. Mr Brown states that this zone provides for and encourages intensification of housing, with development standards controlling matters such as the bulk and location of buildings, setbacks and so on. Mr Brown states that the site is now able to be subdivided into three lots, and that three dwellings could be built accordingly.

[60]   Thus it is clear that the present day zoning encourages greater intensification. Despite this, I am not satisfied that the evidence presently before me establishes a change in the character of the neighbourhood since the covenant was created. There is no evidence of the current state of the physical development of the neighbourhood. Although intensification is clearly now permitted, there is no evidence that it has occurred in fact. Moreover, even that may not be sufficient to establish a change in character of the neighbourhood such that the covenant ought to be modified. The neighbourhood will continue to be residential in character, even with the AUP in place.

[61]   To conclude on this ground, the evidence before me does not establish a change in the character of the neighbourhood. It remains a residential neighbourhood and there is no evidence of increased density of development in fact, even though that is now permitted.

Section 317(1)(b)

[62]   The applicant’s next submission is that the continuation in force of the covenant in its existing form would impede the reasonable use of the burdened land in a different way, or to a different extent, from that which could reasonably have been foreseen by the original parties to the covenant at the time of its creation.

[63]   Counsel for the applicant submits that the impediment that the covenant imposes on the use of the site is increased by the changes in zoning effected by the AUP. There is now the potential for significantly greater development.

[64]   As to whether this might have been foreseen by the original parties, Mr Brown states in his affidavit that he is unable to recall a situation in which a property developer has imposed a land covenant restricting permitted activities under a district plan, presumably because that will have the effect of suppressing property values.

Mr Brown goes on to say he considers it unlikely the transferor would have imposed the covenant had it been realised such would restrict potential development beyond that envisaged in the applicable district planning documents.

[65]   I am unable to reconcile this part of Mr Brown’s evidence with his evidence in the previous paragraph of his affidavit which is to the effect that a covenant of the nature in issue here is imposed to preserve the amenity and value of the sites in the subdivision. As Mr Brown says in that paragraph, a covenant of the nature in issue here serves to provide a purchaser with an assurance that minimum standards will be maintained into the future for sites within the subdivision. With respect to Mr Brown, there is every reason to impose such a covenant. As the Supreme Court said in Synlait, a covenant may be imposed precisely because the possibility of change is foreseen and is sought to be resisted.14

[66]   In this case, the covenant has the effect of preserving the amenity and privacy of all benefitted land. I expect one principal purpose of the covenant was to ensure that those features were maintained, whatever changes might be made to development controls and standards.

[67]   For the above reasons, I do not accept that the ground in s 317(1)(b) is made out.

Section 317(1)(e)

[68]   The effect of s 317(1)(e) is that the Court may modify a covenant if satisfied that it is contrary to public policy. The applicant submits this ground is made out in the present case, given that the covenant precludes the applicant from developing the property in a manner promoted and permitted by the relevant provisions of the AUP. The applicant also submits that the covenant is contrary to public policy given the “national housing crisis”.

[69]   I am not satisfied that the covenant can be said to be contrary to public policy because it precludes more intense development on this particular site. In my view, the

14     Synlait Milk Ltd v New Zealand Industrial Park Ltd, above n 11, at [151].

covenant in issue in this case falls well short of being contrary to public policy. It is always dangerous to speculate but I expect such a situation might arise if, for instance, land acquired under the Public Works Act 1981 was burdened in a manner which precluded a required use of the site. Likewise, if the covenant were to preclude a transfer of the site to a transferee of a particular race or gender or suchlike. I am not persuaded that a covenant of the kind in issue here is within s 317(1)(e).

Section 317(1)(f)

[70]   Section 317(1)(f) permits the Court to modify a covenant if it is just and equitable to do so.

[71]   The applicant submits that it is just and equitable to modify the covenant for two reasons. The first is that none of the respondents oppose the application. The second is that, absent modification, the site will only ever be capable of having a single dwelling on it whereas other properties in the neighbourhood, not burdened by such a covenant, will be capable of development.

[72]   The lack of opposition is not of any significance in this case. That all affected parties have consented to the application would be relevant — see s 317(1)(c). Lack of opposition is not.

[73]   Nor am I satisfied as to the second ground. I have no evidence as to what has occurred or might occur on properties in the neighbourhood. Moreover, this is not a case in which, for instance, an owner of benefitted land is acting capriciously or unreasonably, or standing in the way of a proposal to which owners of other benefitted land consent.

[74]Again, I am not satisfied that the ground in s 317(1)(f) is made out.

Conclusion

[75]   I am not persuaded that any of the grounds in s 317(1) on which the applicant relies to seek modification of the covenant are made out on the evidence before me.

[76]   Lastly, there is one further point to be considered. That is whether, had a ground for modification been established, the covenant would come down on the new titles and, if so, whether any new owner of one of the proposed subdivided lots might seek to enforce the benefit of the covenant against other burdened land in the subdivision. When I raised this with counsel for the applicant, he said he thought any such attempt would be given short shrift by the Court. That may well be so but how that possibility would be addressed is not considered in the submissions and might well be a relevant consideration in the exercise of discretion.

Result

[77]   I dismiss this application for modification of the covenant contained in transfer A27190T.

Peters J

Schedule A – Benefitted Lands

Respondent / Registered Owner(s)		Legal Description (Identifier)	Physical Address
2	Gary Bourne and Kathryn Mary Anne Bourne	Lot 25, DP 57895 (NA11B/900)	74 Reeves Road
3	Sijing Yu	Lot 27, DP 57895 (NA11B/902)	78 Reeves Road
4	Anthony Arnold Colenso and Helen Claire Colenso (as to a 21/50 share) and Daryn James Colenso and Roslyn Lee Mokaraka (as to a 29/50 share)	Lot 28, DP 57895 (NA11B/903)	80 Reeves Road
5	Ellen Oi Lam Hou	Lot 29, DP 57895 (NA11B/904)	82 Reeves Road
6	Huicai Zhang and Yongyu Hu	Lot 30, DP 57895 (NA11B/905)	84 Reeves Road
7	Charanjit Singh and Gurpreet Kaur	Lot 31, DP 57895 (NA11B/906)	86 Reeves Road
8	Mei Yu Xiao	Lot 32, DP 57895 (NA11B/907)	88 Reeves Road
9	Han Chi Su and Yuxia Zhou	Lot 33, DP 57895 (NA11B/908)	90 Reeves Road
10	Shaneel Sharma and Arishma Maharaj Sharma	Lot 35, DP 57895 (NA11B/909)	94 Reeves Road
11	Gary Walter Bell and Yvette Juin Bell	Lot 36, DP 57895 (NA11B/910)	96 Reeves Road
12	David Robert Waring and Susan Kate Bromley (as to a 1/2 share) and Susan Kate Bromley and David Robert Waring (as to a 1/2 share)	Lot 37, DP 57895 (NA11B/911)	98 Reeves Road
13	Chee Choy Hum and Mee Kuan Hum	Lot 38, DP 57895 (NA11B/912)	100 Reeves Road
14	Chee Choy Hum and Mee Kuan Hum	Lot 39, DP 57895 (NA11B/913)	102 Reeves Road
15	Jodi Maree Benjamin	Lot 40, DP 57895 (NA11B/914)	104 Reeves Road
16	Peter Lloyd Cork and Glenda Elma Cork	Lot 41, DP 57895 (NA11B/915)	106 Reeves Road
17	Xi Zhang and Lloyd Hugh Downs	Lot 43, DP 57895 (NA11B/916)	110 Reeves Road
18	Julia Bizhu Zhuang and Jim Zhimin Zheng	Lot 44, DP 57895 (NA11B/917)	95 Gossamer Drive

Respondent / Registered Owner(s)		Legal Description (Identifier)	Physical Address
19	Iek Fo Chao and Un Wai Ip	Lot 45, DP 57895 (NA11B/918)	93 Gossamer Drive
20	Feng He and Lin Zhang	Lot 46, DP 57895 (NA11B/919)	91A Gossamer Drive